Getting ready to leave today to argue before the U.S. Court of Appeals for the Fourth Circuit.
This was the headline, and accompanying photograph, seen after our recent hearing in the Mineral County, WV felony prosecution of John and Tonya Cozatt. They are being prosecuted for several felonies for selling potpourri in their nutrition stores which allegedly contained “synthetic marijuana”. The newspaper just couldn’t resist labeling the products as “Bath Salts”, which of course have been all over the national news due to incidents such as the face-eating incident in Florida.
The actual article makes it clear that the case has nothing to do with “bath salts”. But if you look at the link I provided above under the photograph, you can see how they mentioned “Bath Salts” or “Salts” in three different areas surrounding the article. It’s like the media labeling every gun, regardless of what it actually is, an “AK-47″ or an “assault rifle.” In the end, it poisons the jury pool. In all of these pre-trial articles, people are seeing “bath salts, bath salts, bath salts.” And in the national media they are seeing endless stories on people on bath salts doing crazy things. Is it really necessary to sensationalize something that is innocuous as a nutrition store selling potpourri? As the article notes, law enforcement had no idea the potpourri may have contained illegal compounds prior to having it analyzed by a laboratory:
Attorney John H. Bryan, representing the Cozatts, questioned Paterline about the packaging of the substance, noting that none of the packages said it was synthetic marijuana or meant to be smoked.
Bryan also asked Paterline if he could tell when he purchased the substances if they were illegal or not, and he said he could not.
Literally, on the courthouse steps. Settled for $200,000.00, paid by the Morgan County Commission. Ulysses Everett v. Seth Place and the Morgan County Commission. U.S. District Court for the Northern District of West Virginia. Federal 1983 lawsuit for excessive force and unreasonable search and seizure. It’s a tough call to choose to settle a case when you are prepared to try it before a jury, but in this particular case they had a damn good defense lawyer.
Article in The West Virginia Record.
Article in The Journal.
An article in the West Virginia Record commented on several West Virginia Supreme Court Justices, Justices Ketchum and Davis in particular, giving an attorney a “tough time” during oral arguments:
The examination of Attorney L. during oral arguments was so one-sided that Ketchum even suggested to attorney Thomas M., who represented Pullman and Structural, not say anything that would lose him the case.
And when Tiffany D., who was arguing for Ershigs, reminded the justices that the party harmed by the sanctions was AEP and not the law firms that handled the case, Ketchum responded, “You don’t think AEP has a nice malpractice suit against their lawyers?”
This brought back memories. I was once before the WVSC for oral arguments and my opponent was given a really “tough time”. After they finished, they told him to sit down, pointed at me, and told me to stand up, it was my turn. I looked at them and said, “your honors, I think I’ll just quit while I’m ahead.” One of the same Justices said “I think that’s a good idea”. So I basically just sat down.
A couple of weeks ago I posted about a criminal case in Greenbrier County in which we obtained an outright dismissal less than a week prior to the felony jury trial. It was in the news this morning that state legislators are seeking to create a new law in response to the case:
I had a felony criminal case going to trial tomorrow. But, an unusual thing happened. The judge dismissed the cases on Friday by granting my motion to dismiss. This is an interesting case, in a macabre way.
My client, who was an EMT, was alleged to have taken a photograph of a deceased body – a suicide victim. That photograph was alleged to have been text messaged to his wife – another EMT. Additionally, the photograph was alleged to have been shown to other individuals. When authorities found out about these allegations, they wanted to prosecute. But there was a problem: in West Virginia it is not against the law to take photographs of deceased bodies. So here were the charges:
W. Va. Code § 61-8-14 provides:
If any person unlawfully disinter or displace a dead human body, or any part of a dead human body, which shall have been placed or deposited in any vault, mausoleum, or any temporary or permanent burial place . . . he shall be guilty of a felony, and, upon conviction, shall be confined in a state correctional facility for a determinate sentence of not more than five years.
The grand jurors of the State of West Virginia, in and for the body of the county of Greenbrier, upon their oaths present that, on or about April 20, 2012, in the said county of Greenbrier, CLIENT feloniously, unlawfully and intentionally disinterred or displaced a dead human body, or any part of a dead human body, placed or deposited in any vault, mausoleum or any temporary or permanent burial place. More specifically, on or about April 20, 2012, in Greenbrier County, West Virginia, CLIENT, while working as a driver for the Funeral Home, transported the deceased body of VICTIM from Appalachian Regional Hospital in Summers County, West Virginia, to the Funeral Home in Monroe County, West Virginia. Furthermore, on said date, CLIENT, while en route as indicated above, removed the Identification Tag. Such act was against the peace and dignity of the State of West Virginia and is a violation of West Virginia Code § 61-8-14.
The obvious problem with the indictment was that, according to the statute, it did not allege a crime. We all know that the act being prosecuted is the taking of the photograph. However, in an act of legal acrobatics, they are technically prosecuting for the alleged removal of a body tag. We filed several motions to dismiss, and the motions were set for an evidentiary hearing. We subpoenaed the investigating officer, as well as the funeral home embalmer to testify.
The investigating officer testified that the embalmer told him that upon arrival at the funeral home, he observed the body still inside the client’s vehicle, and that the body tag was laying loosely on top of the body bag. However, the embalmer was the next witness. He testified that he never observed the body while it was still inside the vehicle, and that he had no recollection of the location of the body tag. Furthermore, he said that it was in the client’s job description to assist him by transporting the body inside the embalming room, and to remove the body bag, clothing, and the body tag itself (the removal of which the state was arguing was a felony offense). This is, of course, performed by first responders, as well as funeral home employees every day across the state, and it would be unfortunate to make them all felons.
The only West Virginia case law on the “disinterment” statute was State v. Duncan, and it involved a woman who dug up a murder victim from a shallow grave for the purpose of planting the body in a river so that it could be discovered by authorities. Apparently she had dumped the victim’s vehicle in the river, and then realized that if the body was not discovered it would look suspicious. So she was going to dump the body in the river so that it could be found. She apparently gave no thought to whether or not the bullet hole in the victim’s head would be at odds with her drowning set-up. Anyways, she was charged with “disinterment” since she was not the actual murderer. The WV Supreme Court held that the removal of a body from a shallow grave did qualify as a temporary or permanent burial due tot he fact that the body is actually covered with dirt, etc. The decision left no wiggle room for a prosecutor to argue that a body bag also qualifies as a temporary place of burial.
The Judge in our case discussed this case, and also discussed the fact that only next of kin have the right to “bury” somebody, and that transportation from the coroner’s office to the funeral home in a body bag, by non-family members cannot be considered “burial”. And criminal statutes are to be strictly construed. The word “burial”, at least in the dictionary, means “grave” or “tomb”. Therefore, a body bag, just isn’t a temporary place of burial – even where there is an unpopular defendant and public outcry for punishment. Even though I love to try jury trials, there is no better result than avoiding the possibility of conviction altogether with an outright dismissal of the case.
CHARLESTON – Four Fayette County deputies are accused of beating up a disabled man and later dropping him off at his home without providing him any medical treatment.
Nicholas D. Hall, Robert V. Neal, James K. Sizemore and Dana C. Wysong are named as co-defendants in a five-count civil rights suit filed by Matthew Cole in U.S. District Court. In his complaint filed Dec. 13, Cole, 37 and an Ansted resident, alleges all four beat him without provocation when they responded to a domestic violence call to his cousin’s house two years ago, only to then have Wysong return him to his mother without either explaining his injuries or seeking treatment for them.
. . .
I know that many people have been following this case, so here is an update. On Monday I was ordered by the U.S. Fourth Circuit Court of Appeals to respond to a Petition for Writ of Prohibition filed by the defendants in the Sawyer v. Asbury 1983 excessive force case. The new jury trial on damages is scheduled for next week. I was given until yesterday to respond. Unless the Fourth Circuit says otherwise we are having a trial on Tuesday. Here is our response:
(Yes I did this in two days, so please excuse any mistakes)
Unfortunately we lost at jury trial. But we just received an order from the Federal Judge overturning the jury verdict and granting judgment in our favor. There will be a new trial to determine damages. Yes!
Update: Link to newspaper article.
2nd Update: Gazette article by Zac Taylor. Some excerpts:
In his order filed Friday afternoon, Goodwin recalled the Los Angeles riots in 1991, sparked after a jury acquitted Los Angeles police officers in the beating of Rodney King despite video footage of the incident.
“The public had seen the tape. The Los Angeles riots ensued,” Goodwin wrote in the order. “Here and now, as there and then, the jury did what they thought was right but simply got it wrong.”
The judge said that law enforcement officers are constitutionally prohibited from inflicting “unnecessary and wanton pain and suffering” on detainees. He said that case law also prohibits officers from using physical force in response to chatter from detainees.
. . .
“The video clearly shows Deputy Asbury punching Mr. Sawyer in the face,” Goodwin wrote, “with the force of his blow knocking Mr. Sawyer’s face to the side.”
. . .
Asbury resumed choking Sawyer. The deputies then took Sawyer to the floor, went out of view for the camera for a short period before returning, and leaving the man on the floor, Goodwin said.
Sawyer stayed on the floor while the officers apparently went on with other tasks, Goodwin said. After a while, Sawyer managed to sit up. He was later taken to the hospital with a fractured nose.. . .
During the trial, Sawyer’s lawyer, John H. Bryan, asked the judge to make a ruling on the case based on the video. Goodwin said that he had “grave concerns” that the testimony of the officers involved contradicted the footage.
“I said in response to the motion that I was reminded of the Marx Brothers’ ‘Duck Soup’ movie, in which the heiress confronts Chico Marx dressed as Groucho and says ‘I saw’, and he replies ‘Who are you going to believe, me or your own eyes?’ ” the judge wrote.
TV News article.
Today we received the Judge’s memorandum opinion and order denying the defendant’s motion for summary judgment, finding that the defendant police officer is not entitled to qualified immunity on our primary claim. This means that we are going to have a jury trial, which is scheduled for later this month.
We just finished a civil jury trial in southern West Virginia and came through with yet another unanimous verdict in our favor. One interesting side note: there was one witness who was unavailable to appear due to health reasons, so his deposition was read to the jury. You would think this would bore them to death. But in reality it was halarious because the judge’s court reporter was playing the witness’ part and we had to act it out. Given that the guy repeatedly accosted me verbally in the deposition, it had the jury laughing much of the time.
We are currently litigating the defendants’ motion for summary judgment in Sawyer v. Asbury, et al. Our response contains a fairly thorough walkthrough of excessive force law for most types of excessive force claims. Of course this is tailored to the 4th Circuit as much as possible. But the law is similar throughout all of the circuits.
Two of the exhibits:
We just completed another civil jury trial on Wednesday, and won. This was in Greenbrier County. We got everything we were asking for short of about a thousand dollars. I truly do respect the fact that we have a system where we take everyday citizens from across the board and put them in the role of the ultimate decider of factual issues – to the point where they go through your numbers and decide what’s fair and what’s not. Truly remarkable when you think about it.
The Tim Mazza lawsuit, which was pending in the U.S. District Court in the Southern District of West Virginia, is now settled. In police lawsuit cases, the settlements are not necessarily confidential. This case was settled for $100,000.00. Another case involving two of the same officers was settled a couple months prior for $70,000.00.
Link to a news story on the Mazza settlement.
Link to a news story on the Ratliff settlement.
The funny thing in this case is that from day one, in the newspapers, the mayor and police chief blamed us lawyers and tort reform in general. They publicly announced that they would not be settling this case and that they would handle the matter in court. Of course this had to be addressed once the decision to settle was made. In the News and Sentinel article announcing the settlement, they blamed the decision to settle on their insurer.
If I could get an insurer to settle a frivolous case for 100 grand just to avoid the time and expense of litigation, I wouldn’t be so picky about which cases to accept.
We just filed this case in federal court against the Morgan County Commission (i.e., Morgan County Sheriff’s Department) and Deputy Seth Place for the 2010 shooting of my client, Ulysses Everett. He was shot twice through the front door of his home while unarmed. There is a video.
ETA: News article from The Journal newspaper.
I have posted before about the danger that ignorant media coverage poses to criminal cases – especially TV news coverage. The reporting is just awful. One particular local channel brags that they are helping law enforcement clean up the criminals out of our community. In reality, they are just posting mugshots and reading law enforcement press releases.
I was in court yesterday for a pretrial hearing in a high profile southern WV case. Up to that point, the media had not appeared at the prior court hearings – most likely because they didn’t know about them. Somebody had apparently tipped them off about the hearing taking place. Some prosecutors, when they realize that their plea offer is not going to be accepted and that they are going to have to try the case, will get the media involved which effectively poisons the jury pool.
The TV news crew filmed the hearing, obviously taking careful notes about what was being said (I say that sarcastically). Instead of broadcasting the audio from the hearing, they substituted their reporter’s voice, which was completely misstating the substance of the hearing. Then, as my client and I were leaving the courtroom, they ambushed us putting cameras and microphones in our faces. The reporter asked, “what do you want to tell the victim’s family?”
The funny thing about this is that 30 minutes earlier we were all quietly sitting in the courtroom, along with other attorneys and defendants, waiting for the judge to appear. They had every opportunity to film my client at that time. They had every opportunity to request an interview or a statement, or whatever. They had every opportunity to ask questions about where the case was heading. I’m not saying they would have gotten any information from us, but they made no attempt. They are obviously not interested in the facts, just sensationalism.
It has obviously been a long while since I have posted. It seems that this time of year is the busiest, since everything rebounds from winter hibernation. I recently tried two separate tough civil jury trials. We won the first one, receiving a “plaintiff’s verdict”. It was a case involving breach of a contract to convey corporate stock. The case was close, but the jury ruled in our favor. The second case was an extremely tough car accident injury case. My client was hit by a power truck while attempting to make a U turn on an interstate. The defendant was found negligent by the jury, but my client was also found guilty of comparative negligence. In West Virginia, if the plaintiff is 50% or more comparatively negligent in the eyes of the jury, there can be no recovery. We were close. It was a tough loss. This was a Mercer County case. I thoroughly enjoyed the new “elmo” trial presentation system which was recently installed by the WV Supreme Court.
I felt more confident at the conclusion of the trial in the second case than I did for the first. Yet we won the first and lost the second. It just goes to show that you never know what will happen in a trial – especially in a civil trial.
For concealed weapon carry permit holders in West Virginia, there are two very important items of documentation that you must have on you at all times:
(1) your West Virginia concealed pistol/revolver license, which of course is legally required to be on your person any time you are carrying a concealed weapon; and
(2) your attorney’s business card, in case you get arrested by a law enforcement officer regarding your firearm, or in case, God forbid, you are forced to use your firearm in self defense.
Step one is legally carrying the weapon. Its a whole separate ordeal explaining the situation of having to use deadly force to defend yourself or others to law enforcement and later, the prosecuting attorney. You should leave it to a professional. Have your attorney’s card laminated and keep it in your wallet along with your CCW permit card.
Of course, my business cards already come pre-laminated in a glossy finish and will stand the test of time in your wallet. If you want an attorney who knows guns and the many facets of self defense and gun laws in West Virginia, and who also has a proven track record of successfully defending gun charges, both through obtaining dismissals from judges and prosecutors and from obtaining acquittals from juries, call me and I will send you several of my cards free and with no questions or obligations.
Remember: saying “with all due respect sir, I would like to have my attorney here before I answer questions – I will call him right now” cannot be used against you. Even if they arrest you, your innocence can be sorted out after the fact. Make sure that your attorney gives you some way of contacting him or her after hours if an emergency arises. You have to use your brain.
You may want to say (especially if there is no attorney handy) something to officers, depending on the circumstances, so that they understand that it is a self defense situation. ”Officer, this was self defense, I was in fear for my life, I have a concealed carry permit. That is his gun over there lying next to his body. This man over there was a witness”. If an officer is going to support you, he will not push you to answer questions beyond that. If he is not going to support you, then there is no point in talking with him anyways.
Here is a recent filing in the United States District Court for the Southern District of West Virginia. It has to be one of the oddest things I have ever done in the realm of criminal defense. Most lawyers know that a civil case in state court can be removed by the defendant(s) in certain circumstances. In fact, most plaintiffs lawyers in West Virginia, usually myself included, do everything they can to avoid such a scenario. But did you know that in certain instances, state criminal prosecutions can be removed to federal court? Well it’s true. Similar to being a plaintiff in the 4th Circuit, usually it would be a really bad idea to handle a criminal case in federal court rather than in state court. Defendants almost always get hammered in federal criminal prosecutions. But conceivably there are situations where you do want to be in federal court – especially one in which state court officials (e.g., prosecutors/magistrate judges) have formed a lynch mob and are going after your client.
28 U.S.C. 1442(a)(1) is known as the federal officer removal statute, and allows state court cases of almost any sort to be removed (forcibly) to federal court. It is usually used in civil cases. For instance, if you were to try to sue an FBI agent in state court, it would quickly make its way to federal court using this removal statute, and it would be there about 5 seconds before being dismissed. But 1442(a)(1) also allows for state criminal prosecutions to be removed. It has rarely been used, mostly because scenarios which would invoke it rarely occur. It requires that a federal officer be charged with a crime in state court, and that he or she have a colorable federal defense (usually federal immunity) to the charge.
In our scenario, my client does indeed have a colorable federal defense – LEOSA (Law Enforcement Officers Safety Act). Passed in 2004, it allows current or required qualified law enforcement officers to carry concealed weapons notwithstanding any state or local laws to the contrary. My client is a federal law enforcement officer and was charged with carrying a concealed weapon. The arresting state cop and the state prosecutors have claimed complete ignorance of the federal law. And since it is a misdemeanor, it has been in the West Virginia magistrate court system, which in this case at least, equaled complete ignorance and disregard for federal law. Using 1442(a)(1) I was able to file a Notice of Removal in federal court, which barring a remand by the federal judge, will completely divest the state courts from jurisdiction over the prosecution.
Between the civil lawsuit we filed over this, and the protracted criminal litigation (which is on its way to a state record for volume of misdemeanor litigation) it is mind numbing that state prosecutors and law enforcement would dedicate so many resources and expenses in order to secure a misdemeanor conviction on one person. Beware, cross your local authorities and you could be next.
Several years ago, and again recently, I discussed my frustration at the lack of impartial coverage of high profile criminal cases in West Virginia by TV news media. If you watch our local news around here you will notice two things: lots of mugshots and lots of interviews of police officers. That’s just about all you will see. Of course there are two sides to every story, but you will never, never hear them. You will only hear the law enforcement side.
Recently I became involved in just such a case. The media got involved and started broadcasting stories that just did not portray the situation accurately. They were causing a big stink and provoking people to call the prosecutor and law enforcement to demand that the book be thrown at my client.
The client is a good person; well-liked by just about everybody who knows him. He has never been in trouble before. He was studying to become a police officer. In fact, he was days away from getting a job as a police officer when the news station decided to ruin his life. He was volunteering at a local school with the marching band. He has a concealed weapon permit and had a pistol in his truck. His truck broke down on school property and he had to hitch a ride home with a friend. So he made the mistake of taking the pistol out of his truck and taking it with him. He made the further mistake of showing his friend the pistol as he was taking it out.
Subsequently, the principal was apparently reviewing surveillance footage of the school grounds, and observed the gun. Band director gets fired for having an unauthorized volunteer. The media picks up on it, and eventually people think we have just narrowly-avoided a Columbine incident. A crazy man wielding a gun at a local school. Somebody has to pay.
I encountered the TV reporter in the courthouse. She informed me that she had uncovered the identity of the gun-wielding volunteer and was going to run a story on it that evening. I then offered to give an interview to try and set the record straight. So I did, and I explained the accurate circumstances, on video. Of course when the story was run that night there was a lengthy interview of a sheriff’s deputy explaining that my client had committed a felony and they were going to charge him for it. They also broadcasted his name, age, and the location of his residence. And that was it. Nothing else. No explanation from me. They chose not to include any of my interview. Of course I wasn’t surprised. That is how it usually goes. When your client is charged they show his mugshot and broadcast his name and other information. When he is acquitted it goes unmentioned.
The reason is this: if viewers were to hear my explanation, they would say, “Oh, what’s the big deal about that? They are going to charge this kid with a felony and ruin his life over that?” The story would lose its sensationalism.
Certainly the argument could be made that law enforcement and the prosecutor have no choice. The guy was caught on video possessing a firearm (unloaded) on school property. There is a statute in West Virginia that makes it a felony, with a 2 to 10 prison sentence and no opportunity at probation or parole for possessing a gun on school property, whether or not unloaded, or on any property upon which a school function is occurring. To contrast that with other crimes, that is the same penalty for wanton endangerment with a firearm, which is like shooting a gun at somebody and missing. Brandishing a firearm, which is like pointing a gun at somebody but not firing, is only a misdemeanor with a maximum sentence of one year. So to a certain extent we can blame the legislature for creating an overbroad and unfair law. And I do blame them. Most of them are too cowardly to stand up for common sense and freedom. Attach a school or domestic violence to any vice or allegation of misconduct, and you end up with a capital crime. But I think there is also a place for mercy.
The police do not have to charge, and the prosecutor does not have to prosecute. They have that discretion notwithstanding the legislature. Not every crime has to be punished – nor should it be. Many people would disagree with that. But let those persons throw the first stones who have not themselves committed a crime without being caught or without punishment. In the end it is up to people like me to be the voice of reason to a jury. We are the last and best hope and saving the lives of good people like this young man. It is a heavy burden. You will see things differently when it is your son or daughter, who is a good person, but who has made some sort of mistake and ends up on the receiving end of the criminal justice system. It’s not hard to do. There are so many criminal laws that I do not know them all. Do you think this kid thought that he may have been committing a felony when he took the gun out of his truck? Of course not, yet we are ruining his life as a result. There is a place for mercy and compassion in the court system. But no legislator, prosecutor, sheriff, or judge gets elected by promising mercy and compassion.
In the Charleston Gazette this morning is an article on a federal lawsuit I filed yesterday on behalf of Brian Sawyer, replete with a video of his beating at the hands of a Wood County, WV deputy. This is an excessive force case which is currently the subject of an FBI investigation, as the article confirms.
This incident would have coasted under the radar if it were not for Sgt. Dave Westfall of the Wood County Sheriff’s Department, who blew the whistle on what happened, and saved the surveillance video of the beating, providing it to the FBI after his superior allegedly told him to not throw his fellow deputy “under the bus.” Westfall is a veteran of the U.S. Special Forces, with a distinguished career as a law enforcement officer. He is also a certified self defense instructor and use of force instructor. It goes to show that real men do not need to use their badge to beat people up. Real men use restraint and act with a clear head. Real men do what is right and would never cover up a civil rights violation just because he can.
Unfortunately, now Sgt. Westfall is defending himself against the Wood County Sheriff’s Department. He alleges that he was caught by his superiors showing this video to two FBI agents secretly at a Cracker Barrel restaurant, and now they are seeking to discipline him for unrelated allegations. And we wonder why other officers do not come forward to report misconduct . . . . Their choice is to have a long, quiet career with no bumps in the road by staying quiet, or to do what is right and face persecution.
Now we all need to stand behind Sgt. Westfall and keep him from getting thrown under the bus for having integrity.
This is a good lesson on what the proper role of the federal government is. I was watching the Maynard / Rahall debate last night, and there was a lot of discussion on the proper role of the federal government. There are a couple of things that we do need the federal government for: raising, maintaining, and operating a military; and stepping in to local situations where there is questionable accountability and integrity within state or local government. Thank God we live in a country where we can go to the FBI if we believe that there has been a coverup or conspiracy among law enforcement at the state or local level. Otherwise, what could we do?
Other Media Links for this case:
WTAP video (Note: during the video the anchor says something about Sawyer pleading guilty to assault on an officer, and at the exact time she says that you see Sawyer in the background being choked and held up off his feet. Obviously a vicious assault against that officer. Of course when he took the plea offer, he would have had no idea about the video, and without a video it’s like talking to a brick wall when you tell people you were beaten up. That’s the usual way things work. You get beaten up, and they charge you with assault. Then they give you a good deal on the jail sentence if you just plead to assaulting an officer.)
Statement released by Sheriff Jeff Sandy:
“On October 26th, 2010, a federal law suit was filed concerning alleged “excessive force” violations being committed by a former employee of the Wood County Sheriff’s Office. I assure the public that the Wood County Sheriff’s Office will continue to cooperate fully. As Sheriff of Wood County, I am responsible for all events that have occurred at the Wood County Sheriff’s Office since taking office. Under my watch the Sheriff’s office has not and will not tolerate illegal and unethical behavior by any employee that has taken the oath of office. The Wood County Sheriff’s Office has some great public servants, and this alleged incident should not reflect upon the entire organization. In ending, as Sheriff, I welcome any and all investigations by federal and state investigators, because after their investigation is completed it will show an unbiased detail of the events.”
Note: probably not coincidentally, I also have another case currently pending in federal court for a police beating which occurred in Parkersburg – Tim Mazza. At least this time officials have not been blaming me or tort reform….
One of the primary reasons I have posted so sparsely lately is due to my responsibilities on what is possibly the largest lawsuit against a West Virginia bank ever. We have filed suit against the State’s largest bank – United Bank. There are now several dozen plaintiffs who have joined the suit. I agreed to hold off posting any details on the matter due to one major newspaper’s efforts at publishing an expose’ on the case.
After following the case for over a month, the reporter submitted a large article, which was to be published on the front page. In true West Virginia fashion, United Bank was apparently able to pull the plug on the story, an order which apparently came from the corporate owner of the newspaper. I have since learned that United Bank is the financial institution for that corporation. Did they threaten to call in a loan? Who knows. It’s a great wake-up call when you learn these type of things – that the news you read in a newspaper is not necessarily all the news that is fit to print, but rather all the news fit to print which also fits the political agenda of the corporate owners.
Anyways, here is the latest Amended Complaint, which shows that sometimes truth is stranger than fiction. A new Amended Complaint is set to be filed within the next two weeks containing the numerous additional plaintiffs, which I will post after it is filed.
As usual, there were some comments by the WVSP included as their response to the reporter’s inquiries. However, I was surprised to see that for once there were no potshots taken at me or any other lawyer. They did not call for tort reform this time. I wonder why this is? Could it be that this time there is an independent agency conducting an investigation (the FBI)? After all, they would look pretty bad if they discounted the lawsuit’s allegations and the FBI ends up finding merit in them.
To be fair, the main incident I am referring to is the comments from the Mayor and Police Chief in Parkersburg from the Mazza case, which of course does not involve the state police. And usually the WVSP are more professional than that. But, it was only a week ago that they publicly decried attorney Mike Clifford for releasing information to the media in the Snavely case, all-the-while ignoring the fact that the WVSP had apparently been caught in a cover-up.
I still don’t see how it helps the WVSP to engage in secrecy and suppression of trooper misconduct. You would think that public confidence would be instilled through the purging of troopers who can’t follow the rules. Maybe this is something that we can change if we yell loudly enough. After all, we are citizens and taxpayers, and the state police is our state agency. It represents us, and at least theoretically, is funded by us. Let’s resolve to engage not in tort reform, but reform of the WVSP. We need public disclosure and accountability.
Again, I will say, that I support the military; I support law and order; I support law enforcement. I understand that 95% of law enforcement out there are good people who place public trust and integrity foremost in their actions as officers, and who would willingly sacrifice themselves to save another. I am okay with “cowboyism” where necessary, i.e., in Compton, CA, or some like place. I understand that it is necessary in places which are akin to war zones. But for the most part, in West Virginia, which is the primary area I am concerned about, and the only area in which I have any power to seek justice, I don’t want it to happen – especially against someone who did not commit a crime. And if it does happen, the WVSP knows, and counties and municipalities know, that myself, and other lawyers, who also take an oath to uphold the U.S. and West Virginia Constitutions, will be watching.
- John H. Bryan.
Here is a copy of a lawsuit which was filed friday against the West Virginia State Police, this time on behalf of a law enforcement officer. Of course everything is my fault as the attorney. Damn scumbug lawyers…. There was an interesting article in the Charleston Gazette this past Sunday on all the problems they are having at the WVSP. Out of one mouth they are saying that they pretty much only settle cases for “financial” reasons. Then out of the other side of their mouth they are bragging that they haven’t had to pay out anything to the plaintiffs who sued them in Logan County, even though they have spent almost one hundred grand in legal fees fighting them. If you are settling for financial reasons, then why didn’t you settle the Logan County cases before spending six figures defending them? We are reaching a crisis point in West Virginia with respect to our law enforcement. We have rampant allegations of misconduct, and the leadership actively suppresses it and stays “mum” towards the public. In the rare situation where they agree there has been misconduct, they allow the officer to resign and go elsewhere to some other unsuspecting community. We taxpayers and citizens are told nothing. They should proudly weed out the bad apples among their ranks. The fact that they don’t makes us mistrust them. Lawyers don’t want bad lawyers around. Doctors don’t want bad doctors around. Airline pilots don’t want bad airline pilots around. You only find this phenomonen of absolute non-accountability and “professional courtesy” in the realm of government employees – most notably in law enforcement. Then they blame the lawyers. If there were no lawyers with the courage to take on law enforcement, then people would really be helpless. I bet they would like to get rid of us. Tort reform? Their officers already have dozens of different kinds of immunity, which you can only get past with legitimate allegations and convincing proof. What else do they want? Maybe they should admit they have a problem, then they could take the next step of solving it.
As I mentioned in the previous post, we filed a lawsuit against the city of Parkersburg, West Virginia, for the alleged sexual orientation hate crime beating of our client, Timothy Mazza. There is a good article in the Charleston Gazette – actually the Sunday Gazette Mail, as it is called on Sundays – top of the fold on the front page. It features a color picture of Mr. Mazza displaying the large black and blue side of his abdomen where his rib was fractured. The reason I say it is a good article is because the reporter, Gary Harki, conducted his own investigation into the case. He interviewed witnesses and examined evidence. Other reporters would have just regurgitated the lawsuit.
An interesting thing about the article is that the mayor and the police chief of the town are quoted several times in reference to the case:
Parkersburg Mayor Bob Newell and Police Chief Joe Martin dispute Mazza’s claims. Newell said that if what Mazza claims is true, he should have talked to police – not to a lawyer and the news media. . . .
The mayor blames the lawsuit on what he says is West Virginia’s need for tort reform.
“It is very aggravating that it is being handled this way,” Newell said. “I’ve dealt with attorneys a lot, and they are trying to get cases settled through public pressure.” . . .
Martin and Newell said they will ask their insurance carriers to allow the case to go to court, rather than settle.
Martin, who became chief after the incident, said they never received a formal complaint or even a phone call about the incident before being served with the lawsuit.
“We will let it work itself out through the legal process,” he said. “He can say whatever he wants to say. We’re not as free to speak as they would be.”
So let me get this straight. If the police trespass on your property, beat you up, fracture your rib, refuse to take you to the hospital, keep you in jail overnight, and call you gay slurs while doing so, you should go to them for help? Let me tell you something. I have people who call my office or email me everyday with similar experiences, and there is absolutely no one willing to help them. Making a formal complaint is laughable. The only complaint they take seriously is one filed in a courthouse. Why would you go to them for help while they are trying to prosecute you. They never voluntarily dropped the charges against Mazza. It took a criminal defense attorney going to the court to cross examine the officers in order to point out the civil rights violations which occurred. It was the court that dismissed the charges. The prosecutors/cops were all-the-while trying to get Mazza to agree to a plea involving 30 days in jail. It is outrageous to claim that instead of going to lawyers he should have gone to the police.
In reality, Mazza comes from a long line of law enforcement officers. His father was a police chief. He has great respect for law enforcement. After this happened, phone calls were made, and they were ignored. The police chief would not return a phone call from, or communicate with, Tim’s police chief father about what happened to Tim – nor would they even provide Tim or his father with the officers’ names. It took lawyers to take action. And American citizens have every right to go to the media, as we are guaranteed the ability to do under the First Amendment of the US Constitution (regardless of whether the Parkersburg mayor and police chief agree with that document).
You would want my job too if you grew up in Melbourne, Florida. Take a look at this photo I took in my hometown of Melbourne, Florida. I have said before: you West Virginians don’t know how good you have it as far as law enforcement goes. Since most taxpayer money goes to the school system, law enforcement is forced to live within it’s means.
That is not the case in Florida. There are more cops that you can shake a stick at. And I’m not talking about high-crime areas. They are literally all over the place. Many of them shave their heads and act like they are some elite military unit. They pull over some poor lady for speeding on a four lane highway, in a spot where the speed limit is intentionally lowered to an ungodly speed by whatever corrupt municipality the highway runs through, because it makes them money. And politicians like money. Because they get to give it out, which gives them power – and probably some sort of kickback somewhere along the line. Go down US 1 in Florida (where this photo was taken), and you will see this scene repeated over and over again. The last time I was in Florida, I saw a black Escalade with a blonde lady sitting in the driver’s seat, pulled over on the side of the road. There were 6 cop cars parked behind her with their lights on.
Anyways, this photo shows three cop cars with some poor lady pulled over. The “cruisers” are all brand new. Again, no attempt whatsoever to live within their means. There are so many cops that they have nothing better to do than to gang up on citizens accused of speeding. It takes three of them (and there may even be more than one cop to each car) to respond to this lady pulled over on the side of the road, as if she is on the FBI’s ten most wanted list. Give me a break. What a waste of money. And of course each cop is making at least 50k plus benefits, as compared to the mere pittance paid in West Virginia. Why is this so? Unions. Most government employees are unionized. The taxpayers are the one’s who get shafted when unions get their way. And in Florida, as soon as one of these cops gets some sort of a cough or chronic sneeze, the taxpayers have to pay for them for the rest of their lives. It’s this way with the firefighters too. In Florida, they are all full-time. It’s a career. It’s an enormous burden on the taxpayers. This is why property taxes are so high there. And the two groups look out for one another. That’s why you’ll see those little fire department stickers on back windows of cars. Cops will terrorize the public, but they won’t pull over their firefighter buddies for anything.
The funny thing is, this is in Brevard County, Florida – one of the most conservative, Republican counties in the country (mostly because of the retired military in the area). Do conservative values equal rampant unionization? No, of course not. But people, conservatives included, are afraid to ever even think about denying the police unions what they are asking for, because then they are labeled “soft on crime.” This is extortion. Just like the way the police unions extort you into donating money to them in exchange for the “please don’t give me a ticket, I donated money to your union stickers” that you can put on the back window of your car. More people should have the guts to say so. But then again, I don’t have to worry about them pulling me over. I am a little bit outside their jurisdiction.
If you grow up in a place like this, you grow up believing that the police are not there to help you. They are there to terrorize and harass you. All it takes is one or two times of getting pulled over and being talked down-to by some punk with an AA in criminal justice, a burr haircut, and an authoritative attitude, to make you want to make a career out of criminal defense and/or pursuing civil rights claims on behalf on wronged individuals. People should be treated with respect, not like criminals. I never was treated with respect. Maybe, for that reason, I have an unhealthy grudge. But unhealthy or not, it gets me all ‘riled up every time I hear a new story of injustice, and provides the passion I need to do a good job of representing people.
On the other hand, our law enforcement in West Virginia are generally hard-working and under-paid. I suppose that this is why I like living here.
- John H. Bryan, West Virginia Attorney.
I get calls every day from people in West Virginia, or from elsewhere who were arrested, etc., in West Virginia, who want to sue the police. To be honest with you, I only seriously consider very, very few of these types of cases. Sometimes, from what I hear in the first few minutes, or in a description of what allegedly happened, I don’t even want to get involved with it.
Since I know that people researching the law with regards to filing lawsuits against the police and police misconduct in West Virginia end up on the site, let me go ahead and tell you what I personally look for in a police liability case.
Number one, credibility. If it’s going to be your word against the officer’s. There must be some indication of credibility on your part. That means preferably no criminal history. College education is a plus. A good career is a plus. A good family is a plus. Being married is a plus. Being otherwise successful in life seriously bolsters your credibility.
Number two, corroborating evidence. It is almost necessary to provide some corroborating evidence that the police engaged in misconduct. It could be a witness (again, see comments on credibility), or it could be a videotape, an audio recording. It could be found in official documentation, such as a police report or internal investigation, or even in a cruiser dashboard camera, or a police report. It could be corroborated by law enforcement itself, such as through disciplinary action taken against the officer, or through a criminal prosecution of the officer.
Number three, damages. If you have no damages, in most instances, there’s nothing to compensate you for. This goes hand in hand with credibility. Generally, if you are a credible, upstanding citizen, it will cause you damage to be wrongly arrested. You might get fired. You might lose business. These are damages. Maybe you were beaten and ended up in the hospital. Medical bills, pain and suffering, etc., are damages.
Number four, your story of what happened to you has to piss me off. If after hearing what happened to you really pisses me off, then I get excited about it. Those are the types of cases I like to take. One’s that I feel comfortable with taking to a jury and shoving down the state’s throat. Where I feel truth and justice is on my side.
Number five, and lastly, I have to have a good feeling about the client. I don’t want to take a risk for someone – and these cases are risky – if I don’t like them. Because if I don’t like them, chances are a jury may not like them.
Unfortunately, it’s not possible for me, or for other attorneys, to take every justified case. Other considerations are always at play. It is one of the faults of our justice system.
But it doesn’t hurt to ask. If you call me with your story, I will at least be able to tell you pretty quickly whether I would be interested in taking the case or not.
- John H. Bryan, West Virginia Attorney.
In a few weeks, I will be partially presenting a police liability seminar CLE in Charleston, WV. This will be the second year in a row I have done this. Last year was successful. There were a lot of highly-respected attorneys there, many of whom were defense lawyers representing the state, counties, and cities, and many were plaintiffs attorneys. A lot of good information was exchanged. For better or worse.
Here is a link to the brochure, with all of the relevant info.
Perhaps, the most advantageous lesson to be learned is immunity law and procedure as it applies to other types of governmental liability cases (for those who have not yet taken on one of these cases). Because it is mostly applicable in any type of case where you are suing the state, county, or city. And other types of cases are generally more profitable to a plaintiff than one in which you have a police officer or department as a defendant.
I haven’t posted in a good while. The reason was that I had been preparing for a particularly contentious criminal jury trial.
I am happy to announce that this afternoon, after three days of trial, we finished closing arguments on the case, and the jury came back with two unanimous verdicts of not guilty. It was probably the most emotionally difficult case I have ever struggled with.
The best part about it was, during my closing argument, I asked the jury, when they went into the jury room to begin deliberations, to pick a foreperson, sit down, and take a vote on whether there was any reasonable doubt. If all hands were up, I asked them to come right back out and deliver a verdict of not guilty.
Apparently that is what they did. They may have deliberated 10-15 minutes. God, what a feeling. It felt so good. I don’t think I have ever wanted to win so bad. And I don’t think I have ever put so much time, effort, and passion into anything.
My client was charged with first degree arson and conspiracy, both felonies, with a sentence of 3 to 25 years. He had always maintained that he was innocent, and damn it felt so good to deliver him back to his family a free man. He is a good guy, and his family had suffered through such a nightmare with the prosecution and accusations. There’s nothing like standing before 12 jurors with somebody’s life and destiny in your hands. It’s the worst time and it’s the best time. Fighting [in the courtroom] for money is one thing. But fighting for someone’s liberty – someone’s child, someone’s father – with their life in your hands….. there’s nothing like it. God, it feels good.
- John H. Bryan
My wife and I are now two-time champions of the costume contest at Lewisburg, West Virginia’s Carnegie Hall “Fantasy” fundraiser, which was held on Saturday night. This year’s party was themed as “Fantasy in White,” and so obviously we had to go as the “Hollywood Hotties,” aka, Elvis and Marilyn. This is our second time winning. Three years ago, we won “Fantasy Under the Big Top” as poodle trainers.
If it weren’t for those pesky Trial Court Rules that require a coat and tie, I believe I definitely could gain more prestige with jurors in this outfit.
About a month and a half ago, I mentioned that I was working on a petition for appeal that contained a factual scenario extremely similar to the Arizona v. Gant holding. Well, it was filed early this month, and now my client has authorized me to post a copy of the filed petition. I think it contains some interesting legal issues which have yet to be examined in West Virginia, one of which will be the use of Arizona v. Gant as it applies to “inventory” searches in West Virginia.
Additionally, this is an extremely odd case (factually). And its one of those where the police and the prosecutor really went after the guy and he ended up getting the proverbial “book” thrown at him. It illustrates the danger of jury trials, and the power of the prosecutor. If they want you punished, there are enough laws out there that they can bend the facts around, that they can turn you into a felon pretty quickly – not to mention a registered sex offender. And then they can charge you with multiple counts, basically restricted only by their whim. The only way to stop them is to appeal.
Also, a H/T to Tom Rist for assisting with the case.
Here is a portion of the materials which I prepared for a continuing legal education seminar which I presented in Charleston, West Virginia a few weeks ago, dealing with some of the “black letter law” of searches and seizures in West Virginia. But as I emphasized to the audience of mostly-civil litigation attorneys, this is “ivory tower” stuff that doesn’t always make a whole lot of difference in the trench warfare style of litigation that is criminal defense by jury trial.
There first must be legal authority to arrest. There must be a State law authorizing the arrest of a person who commits any particular act (See criminal offenses in the West Virginia Code). Secondly, if the violation alleged is a felony, the officer must have probable cause to believe that the particular act was committed, and that the person being arrested was the person who committed the particular act, or else the act (whether felony or misdemeanor) must have been committed in the presence of the officer. The arrest is then effectuated when the officer intends to arrest the person and communicates that intent to the person being arrested, and the person is physically restrained by the officer – either with their hands, through the aiming or discharge of a weapon, or through verbal commands that would lead a reasonable person to believe that he or she was not free to leave.
The officer must submit a written complaint under oath or affirmation to a neutral or detached magistrate or judge, particularly describing the person to be arrested, and setting out the officer’s basis of probable cause to believe that a crime has been committed and that the person sought to be arrested committed the crime. See W. Va. Code § 62-1-1 and 62-1-2; State v. Schofield, 175 W. Va. 99 (1985). The warrant may be executed (i.e., the person arrested) at any time or place within the state, unless the magistrate or judge restricts the execution to only such times as during which a magistrate is available to conduct an initial appearance. See Rule 4(a) of the West Virginia Rules of Criminal Procedure for Magistrate Courts. The subject of the arrest warrant may be arrested in his or her own home, regardless of whether there is consent to enter the home. However, there is a “knock and announce” requirement that officers must comply with, with a few exceptions. See Richards v. Winsconsin, 520 U.S. 385, 387 (1997) and Wilson v. Arkansas, 514 U.S. 927 (1995). In order to arrest the subject in the home of a third party, the officer must have both an arrest warrant and either the third party’s consent, or exigent circumstances (see below).
Officers may make warrantless arrests in certain circumstances. Such arrests are permitted for crimes committed in the presence of an officer, or for any felony for which the officer has probable cause to believe the subject committed. Probable cause for a warrantless arrest is identical to probable cause required to secure a warrant. See Gerstein v. Pugh, 420 U.S. 103, 113 (1975). In order to make a warrantless arrest for a misdemeanor, the facts and circumstances within the knowledge of the arresting officer must be sufficient to warrant a prudent man in believing that a misdemeanor is being committed in his presence. Syllabus, Simon v. West Virginia Dep’t of Motor Vehicles, 181 W. Va. 267 (1989).
A warrantless arrest in the subject’s home must be justified not only by probable cause, but by exigent circumstances which make an immediate arrest imperative. Syl. Pt. 2, State v. Mullins, 177 W. Va. 531 (1987). The test for “exigent circumstances” is whether the facts would lead a reasonable, experienced police officer to believe the evidence might be destroyed or removed before a warrant could be secured, or whether there is evidence both that the officer was actually motivated by a perceived need to render aid or assistance, or whether a reasonable person under the circumstances must have thought that an emergency existed.” See State v. Cecil, 173 W. Va. 27 (1983). After the arrest, the subject must be taken “without unnecessary delay” before a magistrate in the county in which the arrest was made. See W. Va. Code § 62-1-5.
The arrest must occur within the proper jurisdiction of the arresting officer. For municipal police officers, the jurisdiction is within the corporate limits of the municipality. See W. Va. Code § 8-14-3. In some circumstances there may be a “mutual aid agreement” that could extend the jurisdictional range. See W. Va. Code § 15-10-1. Municipal officers also may arrest suspects outside the municipality if they are within the county or counties in which the municipality is located (as if they were a deputy), if the violations were committed within the municipality – especially in pursuit situations. Deputy sheriff’s have essentially the same arrest powers as a municipal police officer, except that their jurisdiction is always the county in which they are employed. State troopers have statewide jurisdiction to make arrests, and can furthermore command any other state, county, or municipal law enforcement officers to assist him or her (under proclamation of the governor).
Search and Seizure
Amendment IV of the U.S. Constitution provides that “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. Article III, Section 6 of the West Virginia Constitution provides for the same protections, almost-verbatim.
Search warrants may be issued by municipal judges, magistrates, and circuit court judges, if they are within the jurisdiction of the location of the items sought to be seized. Probable cause must be set forth in a written affidavit detailing the probable cause and listing and describing the place to be searched and the items to be seized. The warrant must be executed by the officer who obtained the warrant within ten days of being issued. See W. Va. Code § 62-1A-4; State v. Clements, 175 W. Va. 463 (1985).
All warrantless searches are per se unconstitutional, but there are several exceptions, one of which is consent. See State v. Buzzard, 194 W. Va. 544 (1995). Another exception is the “emergency doctrine,” which provides that a warrantless entry into a suspect’s home can be proper where there is an immediate need for assistance in the protection of human life, the search or entry by the officers is motivated by an emergency, rather than by an intent to secure evidence, and there is a reasonable connection between the emergency and the area in question. State v. Cecil, 173 W. Va. 27 (1983).
Another exception is a search incident to a lawful arrest, which covers the individual’s person and “immediate geographic area under his physical control,” namely for physical safety purposes. See State v. Sugo, 193 W. Va. 388 (1995). Another exception is the “open fields doctrine,” which excepts areas outside the “curtilage” from the warrant requirement (i.e., land, vacant lots, water). See State v. Lilly, 194 W. Va. 595 (1995). Yet another exception is the “plain view doctrine,” which holds that if an officer observes what he has probable cause to believe is incriminating evidence or contraband, and if he is legally in a physical location that he is entitled to be, then he may seize any of those items without a warrant.
Warrantless searches may also be allowed in situations of “hot pursuit,” where the officer is pursuing a suspect with “speed” and with “continuous knowledge of the alleged perpetrator’s whereabouts.” Items that can be searched or seized includes anything observed while looking for the suspect. See Goins v. James, 189 W. Va. 634 (1993). However, a warrantless entry into a home still requires that exigent circumstances exist. See State v. Cecil; U.S. v. Shelton, 737 F.2d 1292 (4th Cir. 1984).
Moving vehicles can be stopped if reasonable suspicion exists, and they can be searched if probable cause exists. Reasonable suspicion requires that an officer articulate facts which provide some minimal, objective justification for the stop. It has to be something more than an “inchoate and unparticularized suspicion or hunch.” Probable cause exists when the facts and circumstances as established by probative evidence are sufficient to warrant a prudent person in the belief that an offense has been committed and that the subject committed it.
Pursuant to the lawful arrest of the driver of a moving vehicle, the passenger compartment of the vehicle may be searched, as well as any open or closed containers in the passenger compartment that are not locked. See New York v. Belton, 453 U.S. 454 (1981). After an arrest, officers may perform a vehicle inventory of the contents of an arrestee’s vehicle if the vehicle is being legally impounded and the owner of the vehicle is not present or otherwise available to provide for the safekeeping of the vehicle contents. However there are requirements that must be met. See State v. Goff, 166 W. Va. 47 (1980); State v. Perry, 174 W. Va. 212 (1984); South Dakota v. Opperman, 428 U.S. 364 (1976).
Traffic stops are not considered arrests, unless the driver is detained above and beyond what is necessary to issue a traffic citation or warning, or unless physical force or intimidation is used to detain a driver. Both drivers and passengers may be ordered out of a vehicle at any time for any reason. See Pennsylvania v. Mims, 434 U.S. 106 (1977). Officers are not required to inform drivers that they are free to go following the issuing of a citation or warning. Ohio v. Robinette, 519 U.S. 33 (1996).
Regarding pedestrian stops, usually involving an officer requesting identifying information from an individual, refusal to produce identification may not alone form the basis for an arrest. Wilmoth v. Gustke, 179 W. Va. 771 (1988). However, if there is express statutory direction requiring one to do so, or if the officer communicates a specific reason why the information is being sought with respect to official duties of the officer, then the refusal may form the basis for a charge of obstruction under W. Va. Code § 61-5-17(a). State v. Srnsky, 213 W. Va. 412 (2003).
To search or seize a computer located in a suspect’s home, an officer must obtain a search warrant. In order to obtain a warrant, there must be a written complaint under oath, as with arrest warrants, which must adequately describe the computer and/or other items to be seized – such as all of the various accessories and drives that may be connected with the computer (i.e., backup or portable hard drives, digital cameras, printers, DVD’s, etc.) and which connects the same to some crime alleged to have been committed. Proper procedures must be used in disconnecting and dismantling the computer or drives, and should be performed at the direction and instruction of whatever forensic computer examiner will be analyzing the computer, or else data may be lost or destroyed. U.S. v. Simons, 206 F.3d 392 (4th Cir. 2000)
To search or seize computers outside a suspect’s home, i.e., place of employment, the suspect must not have a legitimate expectation of privacy in the computer – it must not be one that society is prepared to accept as objectively reasonable. Thus, each situation is unique and turns on the specific facts involved, such as whether the office is private or locked, whether the computer is password protected, whether other employees have access to the computer, whether the employer has an applicable computer policy that allows a search, whether the employer monitors computer use. Law enforcement officers routinely may, and do, obtain subpoena’s for the suspect’s information held by the ISP provider, such as their account information, their “ISP”, address, and website history, for which there is no legitimate expectation of privacy. See U.S. v. Hambrick, 225 F.3d 656 (4th Cir. 2000); Smith v. Maryland, 442 U.S. 735 (1979).
Note: Please understand that an infinite amount of time was not spent on this material ensuring it’s accuracy. Thus, there may be mistakes in it. If you are faced with a specific legal situation, you need to speak with an attorney individually about your particular circumstances. If you are an attorney, you need to rely on your own research and work product rather than what I have written here. This is meant merely to be helpful.
- John H. Bryan, West Virginia Attorney.
I haven’t posted for a few days, and will not be posting today, because I have a felony criminal jury trial in Monroe County. If it doesn’t go well, I’ll just skip the part where I post the results….
UPDATE: Big win last night. The jury deliberated far into the evening and eventually hung on count 1, which was felony wanton endangerment with a firearm. They came back not guilty of count 2, which was felony wanton endangerment with a firearm, but guilty of the lesser included of brandishing, which is a misdemeanor. And they came back guilty of count 3, which was a misdemeanor battery charge, which was expected and really not opposed.
It was a difficult case, and was argued well by the prosecuting attorney, and bitterly fought by myself. And in the end my client didn’t walk out of the courtroom a convicted felon – and with a mandatory penitentiary sentence and three year bar for parole – and that was my goal. Though extremely unlikely, the prosecutor could try my client again on count 1, but like they say, we’ll cross that bridge if we get there. Every trial is a mini-war, and you have to fight it one battle at a time. I’m pretty confident though that this war is over.
This result further strengthens my respect for the right to a jury trial. Everyone else can write you off, but in the end it’s up to the jury. And we can all be comfortable knowing that we have that right.
Prosecutors need to start offering me better pleas. This is the third felony criminal jury trial in the past year where my client and I have been backed into a corner, forced to go to trial, and achieved either a unanimous and complete acquittal, or at least one unanimous acquittal and beaten the plea offer.
And I have another criminal felony jury trial on deck for next month, and so, like it or not, I will remain on the warpath…
- John H. Bryan, West Virginia Attorney
After about an hour and a half of deliberations on Friday, my Greenbrier County jury came back against my client in a civil jury trial. I really thought we had a good chance of winning. But such is the character of civil juries. In civil cases, you never really know what the jury is going to do. They are unpredictable. They could go either way based on something that both sides never even thought was important. On the other hand, in criminal cases, the jury 90% of the time is going to convict. That is what you can expect. Your struggle is one of the underdog.
There was something unique about this jury though – it had a criminal defense attorney on it. Usually it is a bad idea to leave a lawyer on a jury, and it may have been this time. I made a gut decision to leave him on based on a subtle nuance of the law that I thought he would understand and explain to the other jurors. But I suppose that is a two-way street. And then again, it could have been some fatal flaw in my client’s factual case that swung the jury. The fact is, you never really know.
There is no second place, but it is always good to know that in this situation your client is satisfied that you did the best that possibly could have been done given the circumstances. Sometimes you are just backed into a corner, and in this case, there was no possibility of settlement, so it was just up to the jury. And good or bad, you usually just have to live with the jury’s decision.
– John H. Bryan, West Virginia Attorney.
I am still in the middle of my Greenbrier County civil jury trial, so my time continues to be limited. Closing arguments are slated for friday morning, and then the jury will get the case. For that reason, I can’t comment on it other than to say it is unbelievable how much jury trials take out of you. When I played football, I pushed my body to the limits physically. Then, after the game, and the next day, I was tired and worn out. For some reason, I feel the same way after a full-day of trial. The mental concentration, stress and passion that I put into it leaves me drained afterwards, as if I had been doing some strenuous physical activity all-day. For this reason, a week-long murder trial is like a triathlon, and part of your strategy has to be dealing with your physical body and your mind: drinking enough water, getting enough sleep, and preparing yourself mentally each day.
– John H. Bryan, West Virginia Attorney.
Unfortunately, I will not be able to post much for a little while because I have a civil jury trial in Greenbrier County rapidly approaching. As with any jury trial, it takes an overwhelming amount of preparation to even get there, much less to win. So if you don’t hear from me for a while, it’s definitely not because I’m out partying.
– John H. Bryan, West Virginia Attorney.
Note: this post was initially much more extensive. Pursuant to the advice of my beautiful wife, against whom I have never won an argument (and suspect I never will), and who’s advice has the usual effect of making my hot-heated initial reactions seem childish and ineffective, I have revised this post.
It seems that my humble commentary regarding the Register-Herald op-ed piece detailed in my last post touched quite a few nerves at the Monroe Watchman newspaper. For those of you who may not know, the Monroe Watchman is the main newspaper for Monroe County, West Virginia, and it has been continually published since 1872. It’s a great paper. I read it every week, and I am also a paying advertiser. They are also located right across the street from my office building.
Why should they care about my commentary in this post? Because the Watchman is owned by the family of the former prosecutor who I allegedly criticized, and understandably, they are protective of their family members. And also understandably, the former prosecutor is deeply hurt as a result of the lost election. And I completely understand the hurt, as I suffered through my father’s election defeat as a college student. It’s not easy to see negative television commercials about your father running during prime-time every couple of minutes for a month straight. Your natural reaction is to lash-out at your perceived threat, and I guess that that is what I was doing as well in my initial response in this post. And so I also understand why the former prosecutor feels the need to protect himself and his family.
This situation is not about me, it’s not about the former prosecutor, nor the current prosecutor, nor the magistrate – nor the Watchman. This is about Mr. Watson, who made the intentional choice to consume alcohol and drive a dozen children off of a 120 foot cliff in a Monroe County school bus. This is about Mr. Watson, who tried to save his own skin by lying and claiming that he consumed Nyquil the night before. This is about Mr. Watson, who misled much of the community into believing that he was innocent, only to let them down with the sad truth – that he had an alcohol problem. But, he still didn’t want to lose his job, and he didn’t want to lose his retirement. That was what Mr. Watson was worried about. Was he worried about the children on board his reckless DUI school bus? No, he was worried about himself. This is about the fact that Mr. Watson received a plea deal where only two days was recommended, and where he only received twelve (to serve on the weekends at his leisure).
When I was working as a young prosecutor in Raleigh North Carolina, I tried a man for 2nd offense DUI. He was convicted and sent to jail for one year. There was no accident, no children in the car, no adults in the car – nobody injured whatsoever. He was just some guy who got pulled over and failed some field sobriety tests. That was a serious charge. He was the first person I sent to jail as a prosecutor. I’ll never forget the image of a deputy walking up behind the man and putting him into handcuffs. Imagine if this man, when he was pulled over, had a child in the car? Imagine if he had a dozen children in the car. Imagine if he had a dozen children in the car and drove off a 120 foot cliff. Imagine that he did this with your child in the car, entrusted to his care, and that afterwards he lied and told you that it must have been the Nyquil he took the night before? My point is, this is about protecting the children. We should have made an example of this man. He was a school bus driver for heavens sake! The citizens of Monroe County trusted him to drive their children to school and back every day!
I have been on the other side of the coin as well. As a defense attorney in Greenbrier County several years ago, I had a client who was convicted of 2nd offense DUI. We begged and pleaded to the judge for a light sentence, since he wanted to join the military. The guy was sentenced to one year in jail – and he actually went to jail for about 8 months before he got out of jail. He wore the orange jumpsuit and ate the awful food for breakfast, lunch and dinner – everyday. He did his time. He didn’t whine or complain. He served his debt to society.
My argument is simply this: did this man not deserve a real punishment? Would it really have been a great miscarriage of justice if this man had really been forced to serve a real sentence in jail? I don’t think so. It happens all the time in 2nd or 3rd offense DUI cases. Is it not more egregious for a man to get drunk and then drive a school bus loaded with children? And then to actually crash off a cliff?
Since the Editor criticized me for making “no effort to discuss the issue with Mohler before writing [my] scathing assessment…” then I will reiterate the same offer that always exists on this blog – both to subjects of my posts and to casual observers: if you disagree with something I have said, then please, by all means, leave a comment on the blog. As always, anonymity will be maintained where requested.
- John H. Bryan, West Virginia Attorney
One of the top, if not the top, criminal law blogs in the country, authored by Scott Greenfield in New York, Simple Justice, recently featured this blog in a post titled, “New Blood in the Blogosphere,” which can be found here. Thanks, Scott. I would encourage anyone interested in criminal law to check it out, as I do regularly.
Probable Cause Found in Bluefield Shooting Case – Preliminary Hearings Basically Meaningless in West Virginia
From the Bluefield Daily Telegraph today:
Mario Goodson, 18, appeared Monday for a preliminary hearing before Magistrate Rick Fowler. Fowler found probable cause in Goodson’s case and bound him over to the Mercer County Grand Jury.
Both Goodson and Kenneth Dwayne Eaves, 19, of Bluefield are facing charges of conspiracy and first-degree murder in the Dec. 14, 2007 death of 28-year-old William Jerome Flack of Bluefield. Detective L.B. Murphy of the Mercer County Sheriff’s Department testified Feb. 8 that witnesses allegedly heard Eaves order a second person, Goodson, to shoot Flack.
Wow, that is a big surprise. Many West Virginians do not realize that if they are arrested on a felony, they are entitled to a preliminary hearing in front of a supposedly neutral magistrate to establish whether the police have probable cause to hold you in jail (or on bond) for the charges. They also don’t realize that this process is for the most part a farce, a formality. Preliminary hearings in West Virginia are a joke. The magistrates for the most part are not lawyers and have no legal training on what is and what is not probable cause. They, for the most part, have no idea what is and what is not admissible under the West Virginia Rules of Evidence (of course, there are exceptions).
The West Virginia Rules of Criminal Procedure allow for “relaxed hearsay” in preliminary hearings. This means that the investigating officer can come in and testify to some hearsay if there is a substantial basis for believing that (1) the source of the hearsay is credible; (2) there is a factual basis for the information furnished; and (3) it would impose an unreasonable burden on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing. Therein lies the problem. Many magistrates will just allow the investigating officer to come in and testify to anything and everything they were told throughout their investigation. Then, the magistrate will say, “well, probable cause is a very low burden, and they have met the burden… I find there is probable cause.”
For instance, I had a client who was charged with a absolutely ludicrous felony charge in Greenbrier County. His preliminary hearing was held by a magistrate in Greenbrier County. The State subpoenaed three witnesses: the investigating officer, and two very disreputable convicted felons whom had been caught red-handed and pointed the finger at my client to try and get a plea deal. They appeared and were waiting in the waiting room as the hearing began. The State called the officer first, and he proceeded to testify to almost entirely hearsay testimony – basically everything the other two idiots in the waiting room would have testified to. I objected to hearsay, reciting the above relaxed hearsay rule, but the magistrate basically said that all hearsay is allowed in preliminary hearings. Thus, the magistrate allowed the hearsay testimony despite the fact that the two idiots were in the next room, so the primary source of the evidence could have testified. Furthermore, they were extremely incredible. One of them was notorious in the county for being a career criminal, having spider web tattoos all the way up his neck. The lying officer however, grinned and testified that he thought the man was credible. I later told this to the Prosecuting Attorney, and he laughed and joked that everyone knew that this was the most incredible man in the county, perhaps the state.
As it turns out, when it came my turn to call witnesses, I obviously tried to call the two idiots in the waiting room, so that my client would at least have the opportunity to confront his witnesses. Believe it or not, the assistant prosecutor, on his first week of the job, objected on the grounds that they may be charging one of them with a crime and one may testify against the other, and that therefore there was a “use immunity issue.” I responded that it was irrelevant, and was the prosecutor’s problem and had no bearing on the hearing. The magistrate however, got really, really worried that she was going to make someone mad in the prosecutor’s office and decided not to allow me to call any of the witnesses that had been subpoenaed to the hearing and were waiting in the next room. Then, that was it: she found probable cause and we were not allowed to call any witnesses. This was an absolute disgrace to our criminal justice system. Imagine if it were your son or daughter that was treated like this.
Fortunately this client was able to make bail, as his case was never even brought to the grand jury. If it were some poor sap who didn’t have any money, he would still be sitting in jail thanks to this meaningless system of magistrates conducting preliminary hearings.
By the way, these same non-lawyer judges are the ones who make decisions on whether or not the police have probable cause to be issued warrants to search your home – or to arrest you. Yes, it’s very scary and very unjust.
Read the full article here.
– John H. Bryan, West Virginia Attorney.
Part of the reason that I have not posted lately is because I was preparing for a jury trial in Summers County, West Virginia, in a third-degree sexual assault case – basically a “he said – she said” situation. I am pleased to note that the trial went extremely well. It lasted for about a day and a half. After the jury deliberated for about an hour and twenty minutes on Friday, they came back with a unanimous verdict of not guilty.
It is interesting to note that the investigating officer in the case testified on the witness stand during cross examination that trace evidence disappears after 3 weeks. I asked him if he ever watches “Cold Case Files”…. He replied that he did not. I have a feeling however that the jurors had seen it.
- John H. Bryan, West Virginia Attorney.
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